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2015 DIGILAW 411 (UTT)

STATE OF UTTARAKHAND v. BHAGWAN SINGH

2015-08-26

ALOK SINGH, SERVESH KUMAR GUPTA

body2015
JUDGMENT Hon’ble Alok Singh, J. (Oral) 1. Present appeal has been preferred by the State assailing the judgment and order dated 7.8.2004, passed by Sessions Judge, Pithoragarh in Sessions Trial No. 58 of 1997, whereby all the accused respondents herein were acquitted from the charges punishable under Sections 147, 302 read with 149, 201 read with 149 IPC. 2. The brief facts of the present case are that Dan Singh, son of Jagat Singh, village Kotana, was required by the Revenue Police for the purpose of interrogation in the murder case of Deekri Devi, wife of Chinta Singh; investigating team was searching for Dan Singh in Bali Gaon as well as in Paatan Gaon. As per the FIR, Ex. A-2, lodged by Prakash Chandra Upadhyay, investigating team reached in the house of Prem Singh, son of Kesar Singh, village Basan in the noon of 25.5.1992; Dan Singh was present in the house of the Prem Singh, son of Kesar Singh; however, Dan Singh on the pretext of reliving himself ran away from the spot. A search was made for him. However, he was found dead on 29.7.1992 between the boundaries of Bali Gaon and Patan Gaon. 3. Postmortem was conducted on the dead body of deceased Dan Singh on 28.9.1992. As per postmortem report, following injuries were observed on the dead body of Dan Singh:- (1) “Abraded swelling 3 cm x 7 cm on the left parietal bone, 3 cm above from left ear, 7 cm above from outer aspect of left eye. (2) Abrasion 5 cm x 2 cm on the right wrist joint back side.” 4. During the investigation, it transpired that Dan Singh was, in fact, in the custody of accused members of the Revenue Police Team and he was murdered while in custody of the Revenue Police. Consequently, chargesheet was submitted against the accused respondents for the offences punishable under Sections 147, 302, 201 read with 149 IPC. 5. After committal of the trial to the Sessions Judge, all the accused were charged for the offences punishable under Sections 147, 302, 201 read with 149 IPC. Accused respondents denied the charges and claimed the trial. 6. To prove the prosecution story, Smt. Leelawati PW-1, Smt. Durga Devi PW-2, Sri Deevan Singh PW-3, Sr. 5. After committal of the trial to the Sessions Judge, all the accused were charged for the offences punishable under Sections 147, 302, 201 read with 149 IPC. Accused respondents denied the charges and claimed the trial. 6. To prove the prosecution story, Smt. Leelawati PW-1, Smt. Durga Devi PW-2, Sri Deevan Singh PW-3, Sr. Guman Singh PW-4, Sri Shiv Raj Singh PW-5, Sri Bhawan Singh PW-6, Sri Shankar Datt Joshi PW-7, Sri Bachi Singh PW-8, Sri Madan Mohan Gurrani PW-9, Sri Anand Singh Gusain PW-10, Dr. N.S. Shukla, PW-11 and Sri Kundan Singh Adhikari PW-12 were examined. Thereafter, statements of the accused were recorded under Section 313 CrPC. 7. Having perused the entire record, learned Trial Court has observed that the entire case is roaming around the statement of PW1-Smt. Leelawati, from whose house Dan Singh was taken by the Revenue Police on the pretext of asking something and saying that he would come back by the evening of 25.9.1992. Learned Trial Court has further observed that there is absolutely no direct evidence watching the accused committing the murder of the Dan Singh deceased. 8. Learned trial court has further observed that sole testimony of PW1 Smt. Leelawati, from whose house Dan Singh went in the company of one of the accused in the noon of 25.9.1992, is not sufficient to hold the accused guilty and ultimately acquitted the accused. 9. Feeling aggrieved, State has preferred the present appeal. 10. We have heard Mr. H.O. Bhakuni, learned Assistant Government Advocate appearing for the appellant State and Mr. Devang Dobhal, learned counsel appearing for the accused respondents and have carefully perused the record. 11. As we have observed that as per prosecution story Dan Singh was in the custody of accused party for the purpose of interrogation in the murder of Smt. Deekri Devi and while in custody, he was killed. Let us now examine as to whether Dan Singh was ever taken into custody by the accused, the members of the Revenue Police Investigating Team. 12. Perusal of Exbt.A-2, the FIR, would only demonstrate that in the noon of 25.5.1992, Revenue Police Investigating Team reached in the house of Prem Singh, son of Kesar Singh, wherein Dan Singh was present. However, he ran away from there on the pretext of relieving himself meaning thereby he was never arrested from the house of Prem Singh, son of Kesar Singh. 13. However, he ran away from there on the pretext of relieving himself meaning thereby he was never arrested from the house of Prem Singh, son of Kesar Singh. 13. PW1 Smt. Leelawati, resident of village Kola, while appearing in the witness box, has stated that about 10 years before, at about 10 AM in the morning, Patwari of Pania and one more person came to her house; Dan Singh was present in her house; both of them had requested Dan Singh to follow them for the purpose of an inquiry; Dan Singh left her house in the company of Patwari of Pania and other person; he did not come back in the same evening and he did not come back even in next two days and ultimately his dead body was recovered on third day. 14. It is important to mention herein that while appearing in the witness box, PW-1 has not identified either of the accused persons saying who was the Patwari of Paniya and who was the one other person who came to her house and in whose company, Dan Singh has left her house. No other witness has stated, while appearing in the witness box, that Dan Singh was ever arrested or taken into custody, in their presence, by either of the accused. The crux of statements of all other private witnesses is that Revenue Police Team came to their houses in search of Dan Singh, however, Dan Singh was not found available in their respective houses. 15. In view of the above, we find that Dan Singh was never seen by either of the witnesses in the custody or company of either of the accused. 16. For the sake of arguments, even if it is presumed for a moment that Dan Singh had left the house of PW-1 in the noon of 25.09.1992 and did not come back and ultimately, his dead body was found on 27.09.1992, then to our mind, this is not a sufficient last seen evidence to establish the guilt against the accused persons. Last seen evidence should be just before the incident and there should not be any reasonable delay or interval between the last seen evidence and the occurrence. 17. It needs to be mentioned here that nobody has witnessed the incident. Dan Singh was wanted in connection with the interrogation in the murder of Smt. Dikari Devi. Last seen evidence should be just before the incident and there should not be any reasonable delay or interval between the last seen evidence and the occurrence. 17. It needs to be mentioned here that nobody has witnessed the incident. Dan Singh was wanted in connection with the interrogation in the murder of Smt. Dikari Devi. The finding of the Trial Court is that Dan Singh perhaps, might have been murdered by one of the accused, who is involved in the murder of Smt. Dikari Devi, could not be ruled out completely, therefore, it would not be safe to convict the accused persons on the sole testimony of PW1 or the contents of FIR lodged by Mr. Prem Prakash Upadhyay. 18. In an appeal against the judgment of acquittal, the judgment passed by learned Trial Court, acquitting the accused, should ordinarily be allowed to prevail even if two views are possible on the same set of evidence. Judgment of acquittal may be reversed only when the same is found to be totally perverse as against the material available on the record, or the prosecution is able to point out that some important piece of evidence, was left to be considered, which would have resulted in the conviction of the accused. However, in the case in hand, no such evidence is available on the record whereby the judgment of the Trial Court can be said to be perverse or wrong. Therefore, the appeal fails and it is hereby dismissed.